Karen A. Monk v. Lisa M. Fountain and David L. Fountain, Jr.

• Court: Court of Appeals of Mississippi
• Decided: May 12, 2020
• Docket: NO. 2017-CA-01679-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CA-01679-COA

KAREN A. MONK APPELLANT

v.

LISA M. FOUNTAIN AND DAVID L. APPELLEES FOUNTAIN, JR.

DATE OF JUDGMENT: 11/06/2017 TRIAL JUDGE: HON. D. NEIL HARRIS, SR. COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS ATTORNEY FOR APPELLEES: CALVIN D. TAYLOR NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 05/12/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Lisa and David Fountain are the legal and natural parents of K.F.1 Karen Monk is

David’s stepsister and K.F.’s aunt. Monk filed a petition for custody of K.F. alleging, inter

alia, that K.F. was “abused and neglected while in the custody of [Lisa] and/or [David].” The

chancellor denied the petition, finding that Monk failed to overcome the natural parent

presumption. On appeal, Monk argues that the chancellor erred by not appointing a guardian

ad litem (GAL) and by not granting her visitation. For the reasons discussed below, we find

no error and affirm.

1 We use initials to protect the privacy of minors involved in the case. FACTS AND PROCEDURAL HISTORY

¶2. K.F. was born in September 2009. Her parents, Lisa and David Fountain, married

shortly thereafter. The Fountains have always had custody of K.F.

¶3. On March 24, 2014, Lisa filed a petition on behalf of herself, David, and K.F. for a

domestic abuse protection order against David’s stepsister, Karen Monk. Lisa alleged that

Monk had sent the Fountains harassing text messages and repeatedly made false allegations

about them to Medicaid and Lisa’s employer. The Fountains also suspected that Monk had

broken into their home, but there is no evidence to connect Monk to the burglary. Lisa

testified in the instant case that her justice court petition was later dismissed because her

allegations against Monk did not qualify as domestic abuse.

¶4. On March 31, 2014, Monk filed a petition for a guardianship or custody of K.F.

Monk alleged that the Fountains had neglected K.F.’s “medical and other needs”; that their

marriage was “violent and volatile”; that they failed “to use safe and proper child restraints

for [K.F.], even allowing her to be transported without any . . . restraint at all by an

unlicensed driver with a history of driving under the influence”; that they drove “while

intoxicated with [K.F.] in the car”; and that K.F. was “abused and neglected while in the care

of [Lisa] and/or [David].” In addition, Monk alleged that the Fountains “committed

Medicaid and other fraud regarding [K.F. and Lisa’s two other minor children].” Monk

requested sole legal and physical custody of K.F., an order requiring David and Lisa to pay

child support to Monk, and a restraining order prohibiting David and Lisa from coming

within 1,500 feet of Monk and K.F. Monk also asked the court to appoint a GAL.

2 ¶5. The Fountains answered Monk’s petition and denied her allegations. They alleged

that they were fit and proper persons to have custody of K.F. and that Monk’s petition was

frivolous and intended solely to harass them. The Fountains also filed a counterclaim for a

restraining order against Monk.

¶6. Trial in the case was reset twice. In March 2015, Monk filed a motion to appoint a

GAL. The motion was based on her petition “raising allegations of abuse and/or neglect by

[Lisa and David].” However, Monk never attempted to set her motion for a hearing. Nor did

she mention her request for a GAL at any time during the subsequent trial.

¶7. The case was continued again before the first day of trial in October 2015. The

second day of trial was held in October 2017. The reasons for the two-year delay are not

apparent from the record.

¶8. On the first day of trial, Monk called Lisa and David as adverse witnesses. Lisa and

David denied that they had ever neglected or abused K.F. They also denied that they had

ever driven under the influence with K.F. in the car. They testified that K.F. had little or no

relationship with Monk during the first three-and-a-half years of K.F.’s life. Around the fall

of 2012, K.F. began spending time with Monk and eventually began spending the night at

Monk’s house frequently. This lasted for a year or so until the Fountains became concerned

that Monk had become “obsessive” and “controlling” about K.F. Lisa and David then began

to limit contact between K.F. and Monk. Lisa and David testified that Monk began harassing

them and making false allegations about them in retaliation. Lisa testified that she was also

concerned when she learned during discovery that Monk was taking Norco, Oxycodone,

3 Klonopin, Xanax, and other prescription medications.2

¶9. Monk also testified at trial. Her testimony is discussed below.

¶10. In November 2017, the chancery court entered an opinion and final judgment denying

Monk’s petition for guardianship or custody. The chancellor found that Monk failed to

overcome the natural parent presumption by clear and convincing evidence. The chancellor

found that Monk failed to prove that the Fountains had ever abandoned or deserted K.F. by

leaving her in Monk’s care for an extended period of time. The chancellor noted that Monk

admitted on the second day of trial that it had been more than three years since she even saw

K.F. The chancellor also found that Monk failed to prove that the Fountains drank

excessively or that their drinking affected their ability to care for K.F.

¶11. The chancellor also rejected Monk’s argument that the Fountains were unfit because

Lisa’s other daughter, I.A., was in the custody of I.A.’s paternal grandmother, Sandra

Molina. Molina testified at trial. She acknowledged that she called the Mississippi

Department of Human Services (DHS) around 2009 because David had spanked I.A. Molina

did not approve of David, who had not yet married Lisa and was not I.A.’s father, being “the

one doing the punishment at the home.” Molina and Lisa subsequently agreed that I.A.

would live with Molina, and DHS looked into the matter but took no action. Lisa continues

to see I.A. regularly and pays for her to attend private school. Molina sees K.F., David, and

Lisa regularly. Molina testified that she has no present concerns about David or Lisa as

parents or about their care of K.F.

2 Monk’s medical records showing her various prescriptions were admitted into evidence at trial.

4 ¶12. Finally, the chancellor noted that Monk had requested visitation in the alternative to

guardianship or custody. However, the chancellor held that under Mississippi law an aunt

has no right to visitation. The chancellor further stated that all other requests for relief not

specifically addressed in his opinion were denied. Monk filed a notice of appeal.

¶13. On appeal, Monk argues that the chancellor erred (1) by not appointing a GAL despite

Monk’s allegations of abuse and neglect and (2) by not awarding Monk visitation under the

doctrine of in loco parentis.

ANALYSIS

I. The chancellor did not abuse his discretion by not appointing a GAL.

¶14. “In child-custody cases where [allegations of] abuse and/or neglect are raised, the

chancellor’s decision to appoint a guardian ad litem may be mandatory or discretionary.”

Carter v. Carter, 204 So. 3d 747, 758-59 (¶50) (Miss. 2016). “The appointment is

mandatory where the allegations of abuse and/or neglect rise to the level of a ‘charge of

abuse and/or neglect,’ and in those cases ‘the court shall appoint a guardian ad litem for the

child as provided under [Mississippi Code Annotated section] 43-21-121, who shall be an

attorney.’” Id. at 759 (¶50) (quoting Miss. Code Ann. § 93-5-23 (Rev. 2013)). “In these

situations the chancellor is required to appoint a guardian ad litem, whether the parties

requested a guardian ad litem or not.” Id.

¶15. “However, under Mississippi Code Section 93-5-23, the chancellor is provided

discretion to determine if issues of abuse or neglect have sufficient factual basis to support

the appointment of a guardian ad litem.” Id. at (¶51). The statute gives “the chancellor some

5 discretion in determining whether there is a legitimate issue of neglect or abuse even in those

situations where one party elects to make such an assertion in the pleadings.” Id. (quoting

Johnson v. Johnson, 872 So. 2d 92, 94 (¶8) (Miss. Ct. App. 2004)). The chancellor is not

required to “appoint[] . . . a guardian ad litem based merely on an unsubstantiated assertion

found in the pleadings of one of the parties.” Id. at (¶52) (quoting Johnson, 872 So. 2d at 94

(¶8)).

¶16. This Court recently summarized:

[T]he appointment of a GAL is mandatory only if there is a “sufficient factual basis to support” an allegation of abuse or neglect. The chancery court has “discretion” to determine whether such an allegation is “legitimate.” If the court concludes that there is no factual basis for the allegation, then the appointment of a GAL is not mandatory.

Brown v. Hewlett, 281 So. 3d 189, 197 (¶30) (Miss. Ct. App. 2019) (citations omitted)

(quoting Carter, 204 So. 3d at 759 (¶¶51, 53)).

¶17. On appeal, Monk argues that the chancellor erred by not granting her motion to

appoint a GAL based on her allegations of abuse and neglect. The Fountains initially

respond that Monk waived this issue because she never set her motion for a hearing or

otherwise raised the issue at any point during the trial. While Monk’s failure to obtain a

ruling on her motion would constitute a waiver in most circumstances,3 it does not in this

case. The mandatory appointment of a GAL in cases of abuse or neglect is to protect the

3 See Ridgway Lane & Assocs. Inc. v. Watson, 189 So. 3d 626, 630 n.4 (Miss. 2016) (“Our rule is that a party making a motion must follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of the same.” (quotation marks omitted)).

6 child, not the parties. Therefore, if there is a “sufficient factual basis to support” a

“legitimate” claim of abuse or neglect, “the chancellor is required to appoint a guardian ad

litem, whether the parties requested a guardian ad litem or not.” Carter, 204 So. 3d at 759

(¶¶50-51) (emphasis added). Therefore, we will address this issue despite Monk’s failure to

pursue her motion in the trial court.

¶18. Prior to trial, Monk did not produce any evidence to support her allegations of abuse

or neglect. Near the end of the first day of trial, the chancellor warned Monk: “So far I

haven’t heard anything about [the Fountains’ alleged] unfitness towards [K.F.]. We have

been here about six and a half hours.” The chancellor further observed that Monk’s custody

petition appeared to have been filed in response to the justice court action that the Fountains

had filed against Monk seven days earlier.

¶19. In response, Monk attempted to articulate the basis of her petition. She first claimed

that the Fountains did not “put food in their house” and that she had to “put food in their

house” for them. She also stated, “I don’t think they take care of their children. They are all

about their selves.” She also claimed that David had spanked K.F. with a belt or a switch,

had cursed at K.F., and had used racial slurs in K.F.’s presence. In addition, she accused

David of driving with K.F. after drinking beer, though she could not say that David was

under the influence at the time.

¶20. Finally, Monk testified about an alleged incident in which K.F. continued to repeat

a curse word after David told her to stop. Monk claimed that David warned K.F. that he

would “make [her] eat soap” if she did not stop saying the word. K.F. then said the word

7 again, and David allegedly poured liquid soap into K.F.’s mouth until Monk knocked the

bottle out of his hand. Monk testified that she reported this and other alleged incidents to

DHS. However, the Fountains testified that DHS never contacted them about any allegations

by Monk. Moreover, on cross-examination, Monk admitted that she failed to mention the

soap incident or any other alleged abuse in her responses to interrogatories.4

¶21. Monk testified again at the end of the second day of trial. The chancellor again asked

her to explain why she believed that the Fountains were “unfit” parents. Monk did not

mention any abuse in response. She testified that she could not “say at [that] time” (i.e.,

October 2017) that the Fountains were “unfit” “because it ha[d] been exactly three years and

seven months since [K.F. had been] in [her] presence.” She further stated that she

understood that the Fountains had a “right” as K.F.’s parents “to have whoever they want in

[K.F.’s] life.” However, she thought that the Fountains were trying to “punish” her by not

allowing her to see K.F. when in fact they were just “punishing” K.F.

¶22. Under the circumstances, we cannot say that the chancellor abused his discretion by

not appointing a GAL. In her testimony at trial, Monk made allegations that, if credible or

substantiated, might have warranted the appointment of a GAL. However, those allegations

were made belatedly and only after the chancellor’s pointed comments that the first day of

trial was nearly complete and that there had been no evidence of parental unfitness. Monk

also provided no other evidence to corroborate or substantiate her allegations. In addition,

4 Prior to testifying, Monk called both Lisa and David as adverse witnesses. However, Monk’s attorney did not question either Lisa or David about the soap incident or any other specific instance of alleged abuse. Monk’s attorney did question David about his alleged use of racial slurs, which David adamantly denied.

8 Monk’s credibility was undercut significantly by the fact that she failed to disclose any

specific allegations of abuse in discovery.

¶23. As the Supreme Court stated in Carter, section 93-5-23 affords “the chancellor . . .

discretion to determine if issues of abuse or neglect have sufficient factual basis to support

the appointment of a guardian ad litem.” Carter, 204 So. 3d at 759 (¶51). That is, the

chancellor has “discretion in determining whether there is a legitimate issue of neglect or

abuse even in those situations where one party elects to make such an assertion in the

pleadings.” Id. (quoting Johnson, 872 So. 2d at 94 (¶8)). And the chancellor is not required

to appoint a GAL “based merely on an unsubstantiated assertion found in the pleadings of

one of the parties.” Id. at (¶52) (quoting Johnson, 872 So. 2d at 94 (¶8)). Under Carter, we

cannot say that the chancellor was required to appoint a GAL in this case based merely on

Monk’s unsubstantiated allegations or that the chancellor abused his discretion under the

statute. Accordingly, Monk’s argument on this issue is without merit.

II. The chancellor correctly denied Monk’s alternative request for visitation.

¶24. Monk also argues that the chancellor should have granted her visitation under the

doctrine of in loco parentis. However, Monk did not make this argument in the trial court,

so the issue is waived. Moreover, the evidence did not show that Monk was “in loco

parentis” to K.F.5 Rather, the evidence showed only that Monk visited frequently with her

5 See Davis v. Vaughn, 126 So. 3d 33, 37 (¶11) (Miss. 2013) (“A person in loco parentis is one who stands in place of a parent, having assumed the status and obligations of a parent. Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis.” (citation and quotation marks omitted)).

9 niece, including overnight visits, for about a year to a year-and-a-half. Monk never stood in

the Fountains’ place or otherwise “assumed the status and obligations of a parent.” Davis,

126 So. 3d at 37 (¶11). As K.F.’s aunt, Monk has no right to visit with K.F. over her parents’

objection. Neely v. Welch, 194 So. 3d 149, 160 (¶34) (Miss. Ct. App. 2015) (holding that

relatives other than grandparents have no right to court-ordered visitation), cert. denied, 202

So. 3d 1266 (Miss. 2016). Accordingly, this issue is without merit.

CONCLUSION

¶25. The chancellor did not abuse his discretion by deciding this case without appointing

a GAL. In addition, Monk has no right to visitation with K.F.

¶26. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR. LAWRENCE, J., NOT PARTICIPATING.